Document Category:
State: Tennessee
Subject Matter: Medical Malpractice v. Ordinary Negligence
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In
an opinion published on October 8, 2015, the Tennessee Supreme Court
held that the Tennessee Health Care Liability Act abrogated the Court’s
2011 decision in Estate of French v. Stratford House distinguishing
ordinary negligence from medical malpractice actions.  The lawsuit was
filed by the Ellithorpes against Weismark, a licensed clinical social
worker, alleging that the social worker provided services to the
couple’s minor child (who was in temporary custody of relatives by order
of the juvenile court) without obtaining valid parental consent.  The
complaint included claims for negligence, negligence per se and
intentional infliction of emotional distress.  The social worker
answered the complaint and moved to dismiss based on failure to comply
with the pre-suit notice and certificate of good faith.  Plaintiffs
responded that their claim was for ordinary negligence.

The
trial court dismissed all claims with prejudice, stating that the THCLA
is very broad and encompassed the claims because they related to the
provision of health care services by a health care provider as defined
by statute.  The Court of Appeals relied on Estate of French v. Stratford House,
finding that the trial court failed to utilize the correct analysis
when determining whether the parents’ claims sounded in ordinary
negligence or health care liability. According to the Court of Appeals,
each claim should have been examined individually to determine whether
it sounded in ordinary negligence or health care liability.  The Court
of Appeals vacated the trial court’s order of dismissal and remanded the
case.

The
Supreme Court granted the social worker’s application for permission to
appeal.  In its analysis, the Court noted that the Tennessee
Legislature further amended the Tennessee Medical Malpractice Act
(including changing the name to the Tennessee Health Care Liability Act)
four months after the Court’s decision in French.  These
amendments defined a health care liability action as "any civil action,
including claims against the state or a political subdivision thereof,
alleging that a health care provider or providers have caused an injury
related to the provision of, or failure to provide, health care services
to a person, regardless of the theory of liability on which the action is based."
Tenn. Code Ann. § 29-26-101(a)(1)(emphasis added in opinion).  Further,
the revisions add that any such action "is subject to the provisions of
this part regardless of any other claims, causes of action, or theories
of liability alleged in the complaint."

The
Court noted that when a statute’s meaning is clear, it must apply the
plain meaning without complicating the task and enforce the statute as
written. Giving the statute its full effect and plain meaning, the Court
held that section 29-26-101 establishes a clear legislative intent thatall civil actions alleging that a covered health care provider
caused injury related to the provision of health care services or
failure to provide health care services is subject to the pre-suit
notice and certificate of good faith requirements, regardless of any
other claims, causes of action or theories of liability alleged in the
complaint.  Further, the Court presumed the Legislature was aware of its
decision in French and that the passing of the 2011 amendments
to the THCLA rendered that decision moot.  Thus, the Court held that its
opinion in French regarding distinguishing ordinary negligence and health care liability claims has been statutorily abrogated.   

The
Court determined that plaintiffs’ complaint was "rife with allegations
relating to Ms. Weismark’s provision of health care services to [the
minor]."  One paragraph specifically stated that plaintiffs would show
the social worker "is negligent in providing health care services
without following the parameters of the court order…."  This, the Court
reasoned that dismissal of the complaint for failure to provide pre-suit
notice and file a certificate of good faith was appropriate.

Plaintiffs
asserted that dismissal with prejudice was not mandatory because their
claim was not one in which expert testimony was required, and thus, no
certificate of good faith was required.  The Court found that the
parents’ attempt to couch their claim in the guise of the violation of a
court order was not convincing, and that an expert was required to
establish the standard of care and plaintiffs’ specific allegations. 
The Court reinstated the trial court’s order dismissing the case with
prejudice. 

 

 


Document Author: Baker Donelson Nashville TN
Firm/Company: Baker Donelson Nashville TN
Document Date: January 1, 1970
Search Tags: Medical Malpractice negligence THCLA
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